period the accused was an ambassador; since some ambassador terminate their office with the delivery of their message; a in the case of Heius,* who, after his message was delivered, gave his testimony against Verres. But much depends on the quality of the act with which the ambassador is charged. 37. Another sort of accusation is that of having acted contrary to the interests of the state. From such accusations arise a thousand legal cavillings: as, what it is to act contrary to the interests of the state; whether the accused has injured the state; or merely neglected to serve it; and whether it was injured by him or only on his account. But in these cases, again, much depends on the nature of the supposed act. Another charge is that of ingratitude; and in cases of that kind it is inquired whether the party against whom the charge is brought really received any kindness; an inquiry which is rarely to be answered in the negative; for he who denies the receipt of a kindness which he has received, fixes the charge of ingratitude on himself. 38. Additional inquiries are, what was the extent of the kindness that he received; whether he made any return at all; whether he who has made no return ought necessarily to be convicted of ingratitude; whether he could have made any return; whether he ought to have made that return which was demanded of him; and what is his general disposition. Such as follow are of a more simple kind, as that of unjust divorce; cases of which, as regards the law, have this peculiarity, that the defence is on the side of the accuser, and the accusation on that of the defendant. 39. That, too, in which a person makes a statement to the senate of the reasons that prompt him to kill himself; where the only point of * Alii in renunciando sunt.] Spalding conjectures alia (legationes) in renunciando desinunt. With regard to Heius, who was at the head of the deputation sent by the Sicilians to Rome, (Cic. in Verr. iv. 8) it was made a question whether he should not have returned to Sicily, and reported the result of his embassy, before he proceeded to give testimony against Verres. Burmann fully illustrates the difference between perferre legationem and renunciare legationem. † Examples of this sort of cause may be seen in Seneca the Rhetorician, ii. p. 21; also 344, 355, 492, 495; and in Fortunatianus Pithoean. p. 40. Spalding. See the Declamations attributed to Quintilian, 251, 262. The woman, proceeding against her husband, defends her own character; the husband, justifying himself for having divorced her, Accuses the wife. Turnebus. law is, whether he who desires to die, that he may withdraw himself from legal proceedings against him, ought not to be prevented from killing himself; all other considerations depend on quality. Cases are also imagined regarding wills, in which the question has reference to quality alone, as in the case which I have detailed above,† where a philosopher, a physician, and an orator, contend for the fourth part of their father's property, which he had bequeathed to the most worthy of his children. It is a similar case when suitors, equal in rank, claim marriage with a female orphan relative,‡ and when the only question is about the most deserving among the competitors. 40. But it is not my intention to go through all such sorts of cases; (for more might still be imagined;) nor are the questions that arise from them common to all alike, but are varied by circumstances. I only wonder that Flavus,§ whose authority is deservedly great with me, restricted the subject of quality, when he was composing a work merely for schools, within such narrow limits. 41. Quantity also, whether with respect to measure or number, falls generally, as I said,|| if not always, under the head of quality; but measure is sometimes determined by the equitable estimation of an action, as when it is inquired, how great an offence has been committed, or how great an obligation received, and sometimes by strict legality, as when it is disputed, under what law a person is to be punished or rewarded. 42. Thus, If he who has insulted a youth ought to pay ten thousand sesterces ¶ (which is the penalty appointed for such an offence,) ought he, if the youth whom he has dishonoured hangs himself, to be punished capitally, as being the cause of his death? In such a case, those are deceived who plead as * A subject for declamation in the schools, taken from a law at Marseilles, where poison was publicly kept for those who wished to drink it, provided that they stated to the senate their reasons for determining to die. See Val. Max. ii. 6. Turnebus. See ix. 2, 85; xi. 1, 56; Declam. Quint. 4 and 837; Fortunatianus in Rhett. Pithoean. p. 50. + VII. 1, 38. Sect. 24. The same whom in sect. 24 he calls by his other name, Virginius Spalding. Sect. 16. Something more than £80. See iv. 2, 69. if there were a question between two laws; for, in regard to the ten thousand sesterces there is no controversy, since they are not claimed. 43. The point to be decided is, whether the accused was the cause of the young man's death. The same sort of question regarding measure also, resolves itself, at times, into a question of fact, as when it is disputed, whether a person, who has killed another, should be condemned to perpetual banishment, or to banishment for five years; the point for decision is, whether he committed the murder intentionally or not. 44. Such a question as the following, too, which arises from number, depends for decision on law: whether thirty re wards be due to Thrasybulus for removing thirty tyrants:* and when two thieves have carried off a sum of money, whether each of them ought to restore fourfold or only double. But in such cases the act is taken into estimation, and yet the question of law depends on quality. CHAPTER V. Questions as to legality of proceedings, § 1-4. As to particular points of law, 5, 6. 1 AN accused person who can neither deny that he has committed an act, nor prove that the act which he has committed is of a nature different from that which is attributed to it, nor justify the act, must necessarily take his stand on some point of law that is in his favour; whence generally arises a question about the legality of the process against him,§ a question which does not, as some have thought, always present itself in the same manner. 2. For it sometimes precedes the trial, as in the case of the nice examinations of the prætor, when there is a doubt about the right of a person to be an accuser, and sometimes it occurs in the progress of the trial * See iii. 6, 26. + Factum.] That is qualitas facti; comp. sect. 32. Spalding. Jus.] That is juris quæstio, or legalis quæstio. Spalding. Gedoyn renders this concluding sentence thus: "Mais ici on estime aussi le fait; et le droit lui-même dépend de la qualité." Both the question of fact and the question of law depend on the consideration of quality. § Actionis est quæstio.] See v. 13, 8. itself. The nature of such a question is twofold, as it is either intention* or prescription that gives rise to it. There were some who made a state of prescription, as if prescription were not concerned in all questions in which other laws are concerned. 3. When a cause depends on prescription, it is not necessary that there should be any inquiry about the fact itself. A son, who has been disinherited by his father, raises the question of prescription against him, as being infamous; and the dispute is then merely on the point whether the father has the right to disinherit. As often as we can, however, we must take care that the judge may conceive a favourable opinion of the main question, for he will thus be more inclined to listen to our arguments on the point of law; as in cases respecting sponsions, which arise from interdicts of the prætor, though the question may not be about right to possession, but merely about possession itself, yet it will be proper to show not only that we were in possession, but that that of which we were in possession was our own. 4. But the question occurs still more frequently with regard to intention. Let him who has saved his country by his valour choose whatever he pleases as a recompence.§ I deny that whatever he chooses ought to be given to him; I have no formal prescription; but I try to set the intention of the lawgiver, in the manner of prescription, against the written letter. In either case the state|| is the same. 5. Moreover every law either gives, or takes away, or punishes, or commands, or forbids, or permits. It gives rise to dispute either on its own account, or on account of another law; and to inquiries either with regard to its wording, or to its intention. As to its wording, it is either clear, obscure, or equivocal. 6. What I say of laws, I wish to be understood of wills, agreements, contracts, and every sort of written instru ments; and even of verbal bargains. And as I have made four states or questions on this head, I will touch upon each of them. * VI. 4, 2 + III. 6, 7 Concerning sponsions and interdicts see note on ii. 10, 5. § V. 1. 97; vii. 10, 6. That of exception, which Quintilian here calls actionis quæstio Capperonier. See iii. 6, 23. CHAPTER VI. Questions about writing, and the intention of the writer, either regard both these points, or one only, § 1-4. Arguments against the letter in writings, 5-8. In favour of it, 9-11. General questions under this head, 12. 1 THE question of most frequent occurrence among lawyers is concerning the written letter of a law, and the intention of it; and it is about such questions that a great part of legal discussion is employed. It is, therefore, not at all wonderful that they prevail in the schools, where cases involving them are purposely invented. One species of this kind of question, is that in which there is a dispute about the letter of a law as well as the intention of it. 2. This occurs where there is any obscurity in a law, of which each party* supports his own interpretation, and tries to overthrow that of his adversary; as in this case: Let a thief pay fourfold what he has stolen: Two thieves stole in company ten thousand sesterces;† forty thousand are demanded from each; they represent that they ought to pay only twenty thousand each: here the prosecutor will say that what he demands is fourfold; and the thieves will say that what they offer is fourfold; and the intention of the law is alleged by each side in its own favour. 3. Or a dispute of this kind may occur when the wording of the law is clear in one sense, and doubtful in another; as, Let not the son of a harlot be allowed to make a speech to the people; A woman who had had a son by her husband, began to play the harlot: Her son is prohibited from addressing the people. Here the letter of the law evidently refers to the son of a woman who was a harlot before he was born, and it is doubtful whether the case of the son in question does not come under the law, because he is the son of the woman named, and she is a harlot. 4. It is a common question, too, how the following law, Let there be no second pleading about the same matter,§ is to be understood; that is, whether the term second pleading refers to the pleader, * In eâ aut uterque, &c.] The student of the text will observe that this aut corresponds to the aut at the commencement of sect. 3. I have given nothing equivalent for it in the translation. + See c. 4, sect. 42. This law is noticed by Hermogenes, p. 16. A law of a similar nature is mentioned by Quintilian, iii. 11, 13. Spalding. § See Declam. Quint. 266. Spalding. 1 |